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Lord Thomas of Gresford: My Lords, is it right that years of court time should be wasted by a large corporation with access to millions of pounds for advertising and so on to bring defamation proceedings against individuals without any resources? Cannot the libel laws be reconsidered in that regard?
Lord Falconer of Thoroton: My Lords, the question is put in an impossible way. A company is entitled to have its reputation protected, like anyone else. Plainly, what went wrong is that a case lasting 313 days in court over two and a half years, the whole proceedings lasting for 10 years, could not possibly produce a just result.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey) rose to move, That the draft regulations laid before the House on 21 December 2004 be approved [4th Report from the Joint Committee].
Clauses 1 to 9, Schedule 1, Clauses 10 to 18, Schedule 2, Clauses 19 to 59, Schedule 3, Clauses 60 to 62, Schedules 4 and 5, Clause 63, Schedules 6 and 7, Clauses 64 and 65.(Baroness Ashton of Upholland.)
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, with the leave of the House, I shall now repeat a Statement made by my right honourable friend the Home Secretary in another place. The Statement is as follows:
"On 26 January, I told the House that I intended to bring forward a Bill as quickly as possible to repeal the powers in Part 4 of the Anti-Terrorism, Crime and Security Act 2001the 2001 Actand to replace them with a new scheme of control orders applicable to all suspected terrorists, irrespective or whether they are British or foreign nationals or, in relation to most controls, the type of terrorism with which they are involved. This Bill is designed to meet the Law Lords' criticism that the previous legislation was both disproportionate and discriminatory.
"The Bill needs to be seen in the context of the scale of the continuing and serious threat to the security of the United Kingdom from terrorism. I have today published a series of discussion papers that sets out the Government's view of that threat and our strategy for reducing it. And I have laid before the House a copy of the report of the noble Lord, Lord Carlile of Berriew, on the operation of the Part 4 powers in the 2001 Act, in 2004. Let no one be in any doubt that there are terrorists here and abroad who want to attack the United Kingdom and its interests.
"Some believe that the absence in this country of a terrorist outrage like 9/11 or Madrid means that the terrorist threat has somehow passed us by or failed to materialise. That view is short-sighted, complacent, ignorant of the facts and potentially cavalier in its disregard of the safety of this country.
"I pay tribute today to the vigilance and professionalism of our security authorities including the police for all that they have done and are doing to keep this country safe. It is their efforts that have protected us from such an attack and not any reduction in ambition by terrorist organisations.
"The Government's preferred approachour first optionis to prosecute terrorists. We are considering the scope for new offences including that of 'being concerned in the commission, instigation or preparation of terrorist acts' and other measures, with a view to helping the police and the prosecuting authorities bring more cases to court. I intend to bring forward further counter-terrorist legislation on those issues as soon as parliamentary time allows.
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"Some suggest that we could bring more prosecutions if only we would allow intercept to be used in criminal proceedings. I have thought about that very carefully. But for all the reasons that I set out in my Written Statement to the House on 26 January, I do not believe that that is true.
"The reality is that intercept is only a partoften a small partof the intelligence picture in such cases. Its main value is usually in helping the intelligence and law enforcement agencies to direct their resources, such as surveillance, most effectively to disrupt terrorist activities and gather evidence to support arrests and prosecutions.
"The fact is that there will always be some, including some extremely dangerous people, whom we cannot prosecute either because the material that we have is inadmissible in criminal proceedings or because it cannot be used for fear of revealing, and so endangering, sources and techniques. Some say that we should do nothing about those people or that we should just monitor their activities through surveillance and so forth and hope to deflect them in that way. I do not accept this; the risk is too great. That is the reason for the Bill that I am publishing today.
"The Law Lords' judgment on 16 December found that the Part 4 powers in the 2001 Act were disproportionate and discriminatory in that they applied only to foreign nationals and we had apparently managed to contain the threat from British nationals without detention. As I told the House on 26 January, I accept that judgment and therefore believe that it is important to address those concerns. We should not simply renew the current legislation, which the Law Lords regard as flawed. We should replace it, and with strong measures that are fully compatible with the ECHR and applicable to both British and foreign nationals.
"The Bill that I propose empowers the Secretary of State to make control orders and to impose under them a range of controls on the individuals concerned which will be tailored to meet the threat that each poses. The purpose of the order is to prevent him or her continuing to carry out terrorist-related activities. The orders will be time limited. But they will be capable of being renewed or remade if the threat posed by the individual justifies it.
"The Bill makes provision for a range of controls to be imposed. That list will include prohibitions or restrictions on the possession of specified articles or specified services or facilities; on association and movement; on an individual's place of residence, place of work or occupation; and other restrictions on their ability to travel, including abroad.
"At the top end, the obligations that could be imposed could include a requirement for the individual to remain in a particular place at all times or some similar measure which amounted to a
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deprivation of liberty. The place in question will vary with the threat posed by the individual. It could be the individual's own home, or his or her parents' home. It could even, in certain circumstances, be in accommodation owned and managed by the Government.
"Such severe forms of control orders would, however, require a derogation from Article 5 of the ECHR before they could be implemented. As honourable Members know, Article 15 of the ECHR allows member states to derogate from certain aspects of the convention where there is a,
"The Bill therefore provides that I can make orders that require a derogation if, and only if, there is a designated derogation in force from all or part of Article 5 in respect of a public emergency threatening the life of the nation; the obligation imposed is such as has been described in that derogation; and I am satisfied that, on the balance of probabilities, the person is or has been involved in terrorism and the imposition of that obligation on that person is strictly required for the purposes of protecting the public from risks arising out of, or associated with, that public emergency.
"In the event that a derogation is necessary, I should make the designated derogation order. It would come into force immediately. But it would need, under the Human Rights Act 1998, to be confirmed by a vote in each House of Parliament within 40 days of its having been made if it is to continue in force. So the conditions of any derogationthat is, the threat to the life of the nation and the necessity for the measures which would amount to a deprivation of libertywould be considered, assessed and voted upon by every Member of Parliament if it was to remain in force. I believe that that framework is robust and enables the security of this country to be properly addressed in all foreseeable circumstances.
"These are rightly onerous conditions, which Parliament will have to consider at any time when a derogation is made. I have, of course, carefully considered the current situation and have to tell the House that it is not my intention to seek a derogation at this time.
"I am clear that a derogation is justified on the basis of the threat that we currently face. As I told the House on 26 January, there is a continuing public emergency as a result of the threat from Al'Qaeda, its agenda and its adherents, including the different groups and linkages that make up the Al'Qaeda movement in its broadest sense.
"However, on the second criterion for derogationthe necessity for the measuresI have been advised by the police and security authorities
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that they consider that the control orders that will be established by this legislation are currently sufficient to deal with the individuals concerned and that deprivation of liberty, though valuable, is not 'strictly required' in the language of the convention. They support the measures in the Bill that allow me to impose obligations up to but not including a,
and the flexibility that they give me to tailor the obligations imposed under any order to the threat posed by the particular individual. The security authorities tell me that at this stage they do not want to add anything to the range of controls that I am suggesting.
"Of course these circumstances can change in the future, and quickly. Were the current situation to worsen, we could find ourselves in a position where it is imperative that we are able to place a particular individual or individuals under,
or some other measure which amounted in effect to a deprivation of their liberty within the meaning of Article 5 of the ECHR. This Bill would allow me to impose such an obligation on a particular individual, or individuals, as appropriate provided that a designated derogation order setting out such obligations is in force.
"In considering whether to derogate, my starting point will beas nowthe threat we face. I shall look at the security authorities to advise me on that and on the measures they think are strictly required to meet that threat. And I shall take advice on the legal and other issues that arise in relation to any proposal to derogate before making a final decision.
"If my decision is to derogate, I shall make the necessary designated derogation order and lay it before Parliament. As I have said earlier, the order will come into force immediately but it will continue in force only if it is confirmed by a vote in both Houses within 40 days of its being made.
"Any derogation from Article 5 of the ECHR raises very serious issues. Were we to derogate, we would need to keep the need for such a derogation under regular review. The Bill therefore provides for me to lay an order, subject to affirmative resolution procedure, before Parliament each year (after the first) to the effect that it continues to be necessary to have the power to impose derogating "obligations" by reference to the derogation, and that derogating control orders shall have effect (beyond the first year of the derogation) only while such an order is in force. There will therefore be an opportunity annually for Parliament again to have its say on whether the derogation continues to be necessary.
"The Bill gives certain responsibilities to the Secretary of State. I know that some would prefer it if they were allocated entirely to the judiciary. I have listened very carefully to all that has been said on this point both inside and out of this House and I have sought to address the concerns that have been expressed in the Bill. But as I have already indicated,
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it is the Government's, and my, prime responsibility to protect the nation's security. It is in many ways our paramount task. Decisions in this area are properly for the Executive who are fully accountable to this Parliament for their actions. But when an individual is deprived of liberty for any length of time that is of course also a matter for the courts. Everyone must recognise that in the interests of security and speed an order may need to be imposed immediately. But in those exceptional cases where there is a clear requirement to make an order depriving an individual of his liberty the courts must determine as soon as it is practicable whether the order should continue.
"It therefore follows that the judiciary do have a critical role to play in the process. In relation to control orders not requiring derogation, their role is to review and, where appropriate, to confirm decisions made by the Executive. For derogating control orders, their role is to decide on the merits whether to continue the order or to refuse to confirm it. The Bill makes full provision for this.
"The Bill provides for non-derogating control orders to be subject to challenge in the High Court by the person against whom the order has been made, and for the court to apply the principles of judicial review in hearing the case. The court would be able to consider the issues in both open and closed session with a special advocate representing the interests of the subject of the order in closed sessions.
"Derogating control orders will be subject, as befits the seriousness of the issues raised, to a different form of scrutiny by the High Court involving an automatic two-stage process. On being made, the order would have to be referred immediately to the court for consideration within seven days at a preliminary hearing to assess whether the Home Secretary had reasonable grounds prima facie for making the order. Both sides would be represented. There would be open and closed sessions and the interests of the subject of the order would be represented in closed session by a special advocate.
"If the court was so satisfied, the case would be automatically referred to the High Court for a full hearing at which the court would decide for itself, on an assessment of all the material, whether the order should have been made and what conditions should have been applied. Again there would be open and closed sessions and the interests of the subject of the order would be represented in closed session by a special advocate. It would be open to the court at both stages to strike down the Secretary of State's order or give him directions to modify it.
"I have published this Bill today in full confidence that it meets the situation we face in three important respects. First, I believe it meets the judgment of the Law Lords. Secondly, the Bill rightly confirms that the security of this country lies with the Government of the day, fully responsible to Parliament and the country. The Government are fully accountable to Parliament for the way they carry out their responsibilities and under the Bill that accountability
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will be manifest and demonstrable, and timely. At the same time the process of judicial scrutiny which I propose should meet the genuine concerns which have been raised. Thirdly, the Bill will ensure that the measures we put in place fully meet the threat we face from terrorism, both as we see it today and as it might, despite all our best efforts and those of other countries, develop and mutate over time.
"This is an important Bill. It raises serious and difficult issues. But we must have the capacity to protect our people now and to be able to do so in the future. It would be the gravest dereliction of duty to wait until we have suffered a terrorist outrage here and then respond only after the event. I am not prepared to take a risk of that kind and I hope the House will join me on this. On that basis I commend the Bill to the House".
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